T EXAS V ENUE M AP A NALYSIS Dwayne Hermes Hermes Sargent Bates, LLP

MAP

WHEN VENUE DOES NOT MATTER

Easiest cases to use contributory negligence at mediation NUMBER 1

Easiest cases to use contributory negligence at mediation NUMBER 2

Easiest cases to use contributory negligence at mediation NUMBER 3

Easiest cases to use contributory negligence at mediation NUMBER 4

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Easiest cases to use contributory negligence at mediation NUMBER 6

Importance of Venue Essential factor. Essential factor. Maps attached. Maps attached. Specific clauses for “unfavorable venue.” Specific clauses for “unfavorable venue.”

PROPER VENUE Presumption is proper. Presumption is proper. Defendant to challenge. Defendant to challenge. Can be vital. Can be vital. “General,” mandatory,” and “permissive.” “General,” mandatory,” and “permissive.”

TEX. CIV. PRAC. & REM. CODE GENERAL VENUE General venue is proper in any one of the following counties: General venue is proper in any one of the following counties: All or a substantial part of the events; or All or a substantial part of the events; or Defendant’s residence if a natural person; or Defendant’s residence if a natural person; or Defendant’s principal office if is not a natural person; or Defendant’s principal office if is not a natural person; or General when no mandatory or permissive. General when no mandatory or permissive. See Tex. Civ. Prac. & Rem. Code Ann. § (a).

TEX. CIV. PRAC. & REM. CODE MANDATORY VENUE Mandatory venue when damage to real property: Mandatory venue when damage to real property: In the county where the land is located. In the county where the land is located. See Tex. Civ. Prac. & Rem. Code Ann. §

VENUE SELECTION A forum-selection clause. A forum-selection clause. Bargaining for consent to the forum. Bargaining for consent to the forum. The easiest way. The easiest way.

Forum-Selection Clause. Enforcement mandatory unless unreasonable and unjust, or invalid for fraud or overreaching. Enforcement mandatory unless unreasonable and unjust, or invalid for fraud or overreaching. Overreaching: Overreaching: Unequal. Unequal. Boilerplate not overreaching. Boilerplate not overreaching. Fraud: Fraud: Clause was secured by fraud. Clause was secured by fraud. Public Policy: Public Policy: “Deprived of his day in court.’” “Deprived of his day in court.’” Expense and inconvenience not enough. Expense and inconvenience not enough.

Arbitration Clause. Kept out of the courts. Kept out of the courts. Submitted to arbitration, not state or federal court. Submitted to arbitration, not state or federal court. Courts must compel arbitration. Courts must compel arbitration. Doubts resolved in favor. Doubts resolved in favor. Consideration for the mutual agreement to arbitrate and waiver of rights to litigate. Consideration for the mutual agreement to arbitrate and waiver of rights to litigate.

RISK-SHIFTING OPTIONS Limit liability or shift liability in potentially unfavorable venues. Limit liability or shift liability in potentially unfavorable venues.

Limitation-of-Liability Clauses. Limit the amount of damages. Limit the amount of damages. Fixed dollar or fees paid. Fixed dollar or fees paid. Fees for services could be fraction of potential liability. Fees for services could be fraction of potential liability. Enforceable if does not violate public policy. Enforceable if does not violate public policy. Bargaining Power Bargaining Power Conspicuousness Conspicuousness

Indemnity Clauses One of the parties will pay the expenses of the other. One of the parties will pay the expenses of the other. Limited by Texas Anti-Indemnity Statutes: CPRC 130 and Texas Insurance Code 151. Limited by Texas Anti-Indemnity Statutes: CPRC 130 and Texas Insurance Code 151. Four corners. Four corners. Express Negligence Doctrine Express Negligence Doctrine Specific terms within the four corners. Specific terms within the four corners. Conspicuousness Conspicuousness Attract the attention. Attract the attention. Capital headings, contrasting color or type. Capital headings, contrasting color or type. Actual Notice Actual Notice To separately sign the clause. To separately sign the clause.

Elimination of Third-Party Beneficiaries Explicitly state no third-party beneficiaries. Explicitly state no third-party beneficiaries. Third party a beneficiary Third party a beneficiary (1) secure a benefit to the third party, and (1) secure a benefit to the third party, and (2) directly for the third party’s benefit. (2) directly for the third party’s benefit. Not created by implication. Not created by implication. Subcontractor usually in privity only with general. Subcontractor usually in privity only with general. Property owner not a third-party beneficiary of contract between a general contractor and a subcontractor, unless clearly provide. Property owner not a third-party beneficiary of contract between a general contractor and a subcontractor, unless clearly provide.

Disclaim and Limit Warranties Terms of agreement and avoid statutory express and implied warranties. Terms of agreement and avoid statutory express and implied warranties. Implied warranties not applicable to design professionals. Implied warranties not applicable to design professionals. Parties can define or limit “contractual” obligations. Parties can define or limit “contractual” obligations.

Waiver-of-Subrogation Clauses Economically inefficient. Economically inefficient. No right for covered damages. No right for covered damages. Fire and other perils shifted to owner with insurance. Fire and other perils shifted to owner with insurance. Intended to avoid litigation. Intended to avoid litigation. Consistently enforced by Texas courts. Consistently enforced by Texas courts.

Anti-Assignment Clauses To third parties. To third parties. Limits potential additional parties. Limits potential additional parties. Texas courts enforce. Texas courts enforce. Court’s enforcement. Court’s enforcement.

Conclusion An ounce of prevention is worth a pound of cure. An ounce of prevention is worth a pound of cure. Always be sure to check to see if you may be subjecting yourself to an unfavorable venue. Always be sure to check to see if you may be subjecting yourself to an unfavorable venue. Even if the facts are on your side, it can be difficult to get the jury to side with you on the facts. Even if the facts are on your side, it can be difficult to get the jury to side with you on the facts. When you know that you may be subjecting yourself to a potentially unfavorable venue prepare to limit litigation in those venues by negotiating for these types of clauses. When you know that you may be subjecting yourself to a potentially unfavorable venue prepare to limit litigation in those venues by negotiating for these types of clauses.